N.A. Britto, J.@mdashThis is defendants'' second appeal arising from R.C.S. No. 8/96/C.
2. Heard learned Senior Counsel on behalf of the appellants/defendants and Shri R.G. Ramani on behalf of the respondents/plaintiffs.
3. The dispute between both the parties is as regards property surveyed under nos. 2/12, 2/13 and 16/2 of Village Betqui. As per the plaintiffs, this property is the seventh addition/parcel (adicao) of property Cucrulem having land registration No. 12422, while according to the defendants, it is the second-cum-fifth addition/parcel (adicao) of the same property, and the same was purchased by them, by a sale deed dated 18/03/1982 from the heirs of late Gajanan N.B. Siurekar.
4. Both the Courts below, after assessing the evidence, both oral and documentary produced on behalf of both the parties, have come to the conclusion that the suit property is the seventh parcel (adicao) claimed by the plaintiffs. In my view, this is a concurrent finding of facts arrived at by both the Courts below, based on evidence, and this cannot be interfered with in this second appeal.
5. Learned Senior Counsel on behalf of the defendants contends that the suit property was not identified by the plaintiffs as per the boundaries given by them. Learned Senior Counsel further submits that identification of the suit property by the plaintiffs went to the root of the matter and the plaintiffs having failed to identify the suit property with reference to the said boundaries, plaintiffs'' suit was required to be dismissed.
6. There is no dispute that the entire property Cucrulem having Land Registration No. 12422 comprised of ten additions/parcels (adicoes) and all belonged to Santu Purxotoma Fotto Gaonkar and his wife Duarkui and this position has been admitted by Mahesh Fadte/DW1, as rightly noted by the learned first appellate Court in paras 10 and 12 of the judgment. It has also been admitted by Gangadhar G.B. Shivrenkar/DW3, the son of the said Gajanan N.B. Siurekar that the seventh parcel of the property originally was owned by Sukdo Santu Fadte (deceased plaintiff No. 1) and presently by his legal representatives. The defendants have been unable to show that the said seventh addition was ever sold by the plaintiffs or purchased by the predecessors of the defendants and if at all the predecessors of the defendants purchased in the auction held on 30/10/1937, any of the parcels, it is the second, fifth, eighth and the right to third part of the third parcel. The defendants'' reference to the property purchased by them as second-cum-fifth parcel appears to be a fallacy and it appears that the said plea has been taken for the sake of convenience. The learned first appellate Court was therefore justified in observing that one failed to understand what was meant by second addition corresponding to fifth addition. What the predecessors of the defendants purchased and consequently sold to the defendants had either to be the second or fifth or both additions/parcels.
7. The plaintiffs had also given the present boundaries of the suit property. The suit property with the aforesaid survey nos. was recorded in the names of the plaintiffs by the survey authorities and an application filed by Gangadhar Gajanan Shivrenkar claiming to be the owner in possession was dismissed by the Mamlatdar, Margao by order dated 12/11/1973, which has attained finality, the same having not been challenged. It appears that thereafter defendant No. 1 filed a mutation application for inclusion of his name in the occupants column and to delete the names of the plaintiffs stating that they had purchased the said property from Gangadhar Shivrenkar and this application came to be dismissed by order dated 30/03/1995. As noted by the learned trial Court, a perusal of this judgment shows that the property purchased by defendant No. 1 from Gangadhar Shivrenkar was surveyed under Survey No. 2/87 and did not correspond to the properties bearing No. 2/12, 2/13 and 16/2. That order has also become final. The contention of the defendants is that the above orders were not challenged because of pendency of R.C.S. No. 34/74 filed by the said Gangadhar G. Shivrenkar and others. Order dated 12/11/1973 could have been challenged in R.C.S. No. 37/74 but that was not done. The learned trial Court concluded that the subject matter of the R.C.S. No. 34/74 was the second parcel while the subject matter of this suit (from which this second appeal arises) was the seventh parcel, while the first appellate Court noted that the subject matter of R.C.S. No. 34/74 was not the subject matter of this suit, and the conclusions of both the Courts in this regard cannot be faulted.
8. It appears from para 14 of the judgment dated 28/01/1981 in R.C.S. No. 34/74 that permanent injunction was sought only as regards the second parcel and although PW1 as well as PW2 in that case had stated that the subject matter was the fifth addition, the suit was decreed and it could have been decreed only in respect of the property regarding which the relief was sought i.e. second addition/parcel. It was also observed therein that the suit property in that suit was the second parcel or the fifth parcel and certainly not the seventh parcel. By balance of probabilities, the first appellate Court has concluded that since some of the boundaries tally with the seventh addition and since none of the boundaries given by the defendants tally with the boundaries, either of the second parcel or the fifth parcel, the defendants had failed to prove that the suit property was either the second parcel or the fifth parcel of the property Cucrulem.
9. Considering the above, no substantial questions as framed by the defendants or otherwise arise in this appeal. The second appeal therefore is hereby dismissed with costs.
